ICE Boss: It's Okay To Ignore The Constitution If It's To Protect Companies

from the how-nice-of-them dept

While the folks at Homeland Security keep telling me that they simply cannot speak publicly about the seizure of various domain names -- and specifically the numerous mistakes they've made that appear to clearly violate both the First Amendment and Due Process rules -- it seems they have no problem talking about the domain seizures to folks in the press who don't bother to ask tough questions.

ICE boss John Morton did an interview with Politico, where he trots out a bunch of highly questionable statements about the domain seizures, including claiming that it's all okay for them to do this because they're trying to "protect U.S. industry" rather than "regulate the internet." But that's not the role of Homeland Security or ICE. And there are limits on what ICE is actually allowed to do, and Morton's technically clueless agents seem to have ignored many of those rules.

"We don't have any interest in going after bloggers or discussion boards," he said. "We're not about what is being said by anybody. We're about making sure that the intellectual property laws of the United States, which are clear, are enforced. When somebody spends hundreds of millions of dollars to develop the next movie or a billion dollars to develop the next heart medicine, the innovation and the enterprise that went into that effort is protected as the law provides. It's that simple."

There's so much wrong in that statement that it should be grounds for dismissal. Morton is not representing what has happened, the law or the facts accurately here. He's lying to the American public (and to Politico, who appears to have failed to call him on any of it). First of all, if they don't have any interest in going after bloggers or discussion boards, why did they? Second, if the intellectual property laws of the US are "clear" -- why did ICE not use them and actually get anyone charged with infringement? Third, the laws aren't that clear -- which is why we (normally) have trials to make sure there was actual infringement. If ICE had been willing to let due process play out, it would have avoided embarrassing mistakes, like taking down 84,000 websites because a few may have had illegal content. Or seizing a blog (yes, a blog, despite what he says) that posted links to music elsewhere that was sent by the labels and artists. And, when someone spends all that money to develop something, there are plenty of business models for them to use, and they have every right to use civil laws to go after those who violate their rights. What they shouldn't have is some government agents taking down websites with no due process, seizing plenty of protected speech in the process.

Finally, for Morton to claim "it's that simple," when the law is anything but simple should get the man fired. Seriously. No one who knows anything about the law thinks it's that simple. He shouldn't be in charge of ICE if he thinks that the laws are as simple as he makes out. It's not, and either he knows it and he's lying or he doesn't know it and he's unqualified for the job. Which is it? I figure I'll send these questions to my friendly press contact at Homeland Security, and I imagine the answer will be the same: "I'll have to direct you to the Justice Department on those questions." Because actually responding to American citizens whose rights he seems to have no problem trampling is not in his job description. Helping Hollywood by violating multiple parts of the Constitution is much more fun.

"We can seize and forfeit them just like we seize and forfeit bank accounts, houses and vehicles that are used in other crimes," he said. "Any instrument of a crime is subject to our jurisdiction in terms of seizure and forfeit."

Again this is incorrect on a number of levels, and again raises questions about Morton's competence to hold the job he holds. You can seize property, but the case law is pretty clear on the different rules when it comes to seizing speech. And he's never responded to that at all. Because, of course, he cannot.

John Morton seems to think it's fine to be censor-in-chief and to violate multiple parts of the US Constitution, because it protects a few businesses who have failed to adapt their business models. This is a sickening display of the takeover of the American government by corporations.

Constitution

It seems quite plain that most of our government these days wants to completely ignore the Constitution. I don't really know why this is, but this mess with ICE & Homeland Security is just one more incident.

Billions of dollars...

You mean all this time I could have been pirating medicine, rather than paying for it like a chump? Could someone get me the URL of this definitely-not-a-blog-or-discussion-board so I can start saving some $$$? Thx.

Re: Billions of dollars...

"When somebody spends hundreds of millions of dollars to develop the next movie or a billion dollars to develop the next heart medicine, the innovation and the enterprise that went into that effort is protected as the law provides. It's that simple."

So if I spend a million dollars to hire someone to draw me a circle and someone else copies that circle, I should be able to sue them for a million dollars because that's what I chose to spend on the damn circle?

The amount invested in research and development or a product's creation does not directly correlate to its value, however much it might correlate to its producer's estimation of value or offering price.

Can I price an item at a million dollars and if someone steals can I then have a million dollars in lost property written off on my taxes?

Re: Anybody else hear

On a separate note, is it me or is anyone else noticing a HUGE slowdown on this site loading the last few days?

Really? We actually made a bunch of changes that appear to have cut the load time in *half*. We've been monitoring load times pretty carefully over the past few months, and massively cut down on the load times, so if you're seeing the opposite, that's weird. Do you have any idea where it's coming from?

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Morons as heads of agencies.

Haven't any of you noticed that some people are getting their head of agency positions by sleeping their way to the top.

I'm not saying this guy did but it has become more common that at any other time in U.S. history. And it's equal opportunity, all kinds of alliances.

So, yes, the people running agencies are now stupider and less competent than every before. They are spaceholders for other interested parties and they are also open to every form of bribery. Although nowadays these are called consultancy fees, board memberships, special investor friends and family deals, special hedge fund investments, and speaking engagement fees.

"We can seize and forfeit them just like we seize and forfeit bank accounts, houses and vehicles that are used in other crimes," he said. "Any instrument of a crime is subject to our jurisdiction in terms of seizure and forfeit."

With asset forfeiture laws the way they are these days, I think Morton might have misspoke and that last word should have been "profit".

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I find this idea the funniest of all - that if I spend a million dollars that I'm entitled to get that back somehow no matter what the item I actually spent $1,000,000.00 on was actually worth.

I say this because recently my mother lost her wedding ring and engagement ring. She's been married 36 years, and those two items are arguably worth more than one million dollars to her. Yet, her last recourse was to submit a claim to the insurance company for the appraised value of the gold and diamond rings (way less than one million dollars). Why can't she claim her rings were worth at least that much? Because that's reality. You can only get back what an item is actually valued to be worth, and that's paid back from an insurance company which you pay monthly or yearly in case of damage or loss. Movie makers and artists don't insure their works when they make them because they have no idea how much it's worth, and neither does everyone else. You can’t put a price tag on something until someone else appraises how valuable something is.

Avatar is worth hundreds of millions because enough people said “this is a great movie, and I’ll pay X amount of dollars to see it”, and they did. We couldn’t say it was worth hundreds of millions of dollars before anyone saw it because we’d have no idea what to base that valuation on. Without people to judge, nothing holds ANY value, so an artist creates something they value themselves, and share it with the world in hopes that someone else will value it highly too.

As someone who is based in reality, if a movie is made, and you spend 6 million to make it, and you distribute it however you want, why don't you charge 6 million people $1 to see it? An MPAA goon might say “Because you want to make a profit... duh” so you charge $10. But you can only get 1,000 people to pay you to watch it, so you cry that piracy is to blame. Only your movie sucked, no one else watched it because it wasn’t worth the price of admission, so they told their friends not to bother, and that was it. The movie wasn't worth the $10,000 you actually got back for it, so you as a film maker or producer shouldn't be able to go cry to the government to get your other 5.99 million back... that's how reality works. People will only pay for what they value – not the other way around.

You can’t claim something is worth anything without other people to provide evidence that a thing, piece of art, movie, whatever – is worth something, be it money or anything else. Just because you made something doesn’t mean you’re owed $$ because I saw it or touched it. If I think your product/service/art is worth the price tag you put on it, I’ll pay. If not, you didn’t lose a sale, you lost nothing because I wouldn’t have paid it to begin with.

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Actually, the key problem in this entire discussion is that Mike seems to look at the domains themselves as the speech, which they do not appear to be. They are only a virtual location for an illegal business.

None of the speech is seized. None of the "books" or "content" is taken away. The owners still have all of their "speech" intact, which they can disseminate any way they like. The domains are not the speech, rising no higher up the food chain than a phone number or a cell phone. They are at best sign posts towards information, and not information in and of themselves.

It would take some mighty find lawyering to even suggest that a domain name is "speech" by itself.

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very slow for me sometimes too. mostly the voting buttons taking Ages to show up after the comments are loaded (and the page jumps back up to where i was looking to start with once they finish loading, no matter where i'm looking at that point) and the 'thanks for voting' or whatever message not actually appearing before it disappears again.

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Agreed. I love that contradiction. They are people when they want to claim certain rights, but they're not when it's inconvenient for to be so.

Take slavery for instance. It's illegal to "own" another person. Yet corporations, who claim to be a legal person, can buy up other corporations or "persons". So what's their excuse for that? Are they getting married to other corporations? Is the price of the merger just a dowry to the share holders? All I see is blatant, overt, hypocrisy.

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Mike,you have so much external crap on the pages, it isn't shocking that there is a loading issue. The toolbars, the various ad programs, the various trackers, and the like. It is hard to block them all because I don't see them all listed in your privacy policy.

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Article one, section 8:

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

This is where the AC gets the idea that copyright is in the constitution. What the AC fails to realize is that it only grants congress the power to create copyright laws, not that it's an inalienable right or a mandate for them to do so. If congress felt it would serve the people, they could repeal copyright any time and they would be in their power to do so.

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Sorry, let me use the right term "alleged illegal business", which was shown to a judge, and was enough to merit the warrant.

Oh, and before anyone goes there, the courts have already ruled that some protected speech may be adversely affected by the termination of unprotected speech, but that isn't enough to make the seizures go away.

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Article 1, Section 8:

"The Congress shall have Power [...] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

Yes, that grants Congress the power to create and administer copyright (which they have done, voraciously), but I believe Mike's opinion is that not only has Congress gone well beyond the stated intent of the clause, but that it's very possible that this clause is just as obsolete as the subsequent Militia clauses.

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The first amendment is not just simply a right. It's an inalienable right. The constitution doesn't grant these rights, it protects them, for the good of the people, from a tyrannical government. Furthermore, there's a lot more process to go through to remove a constitutional amendment than a mere copyright law (e.g. ratification by a majority of the states). What's even more is, copyright is subordinate to the first amendment and not inalienable. Also, "to promote the progress" does not imply nor grant any "rights". It grants congress the power to grant those rights. Let me make this explicitly clear: Section 8 of Article One of the constitution of the United States of America grants these powers to congress. They are in no way, nor do they imply any, rights.

Excellent Post

Excellent post, Mike. Two first names come to mind here - Ron Paul. We're going to have to put someone in office in 2012 that will work to protect our rights, a Constitutionalist, or they will be gone before we know it. They are slipping, slipping away now...2012 is the crucial year for the Republic.

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Right, it's all the big bad file sharing infringement that's destroying the economy. So let's just ignore the fact that the banks blew up the economy with their sub-prime loan schemes and derivative markets. Let's forget that we are paying for the occupation of a country that we can't afford to occupy and doesn't want us there. Let's completely gloss over the fact that employee wages keep shrinking while executive wages keep growing. Finally, let's continue to be oblivious to the fact that our money system is backed by the millions of borrowers in debt to the banks. Debt that feeds an ever growing inflation of our currency. Without which, our money would be worthless. Let's just forget all of that, because the "pirates" are the real problem!

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The way I read it the first amendment says that the congress cannot pass laws that take away these rights (congress doesnt grant them, they are already there). Whereas section 8 of article 1 says congress can only grant these "rights" for the promotion of science and useful arts and only for a limited time (after which those "rights" end).

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Wow, way to get it so wrong! It's an inalienable right because it's self evident, not because it's impossible to repeal. We all hold to the fact that every person has the irrevocable right to freedom of speech. It is a natural right. Copyright is not a natural right. It is a legal right, one that is not protected in the same manner that freedom of speech is protected.

Just goes to show..

that the government is quite willing to junk constitutional protections when it comes to "national security" or business models. Of course it helps when businesses slip them money under the table to do their bidding. In some countries this is called bribery, in the U.S. it's called lobbying or "election campaign contributions", but the net result is the same; a corrupt government that is owned by big business. I wonder how much the ICE boss gets from businesses?

It's NOT ok...

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"We have free speech because the First Amendment says so."

Yes, that's completely wrong. If the First Amendment was repealed, it's still a fact that a person has the right to free speech. The only difference is that the government is no longer bound by law to protect it. The Constitution only protects against the government from violating these rights. Copyright only supersedes freedom of speech in cases where the defendant cannot prove fair use. Thus it is a legal right, compared to freedom of speech which is a natural right.

Are you actually foolish enough to believe that laws make rights? They don't, the will and consensus of the people makes rights. Laws merely codify these rights for the welfare of the people so they can be used to defend themselves from injustice.

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Seizing them is a very good way to judge the popularity of the sites, as well as to see who is visiting (aka, gather evidence), etc. Just like any move to seize a car, a cell phone, or other piece of technology used in a crime, it is locked up pending a completed investigation and charges.

A seized item doesn't have to become "valuable evidence" to be held until trial. Once the warrant is signed and executed, that is pretty much that until trial.

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You're putting words in Mike's mouth to argue against something he never said while making it look like you have a valid point against his criticism of the DHS. Only by engaging in this sort of verbal sleight-of-hand can you make your position appear legitimate.

Domains aren't speech, that is true, but the fact that domains are attached to speech can't be as easily dismissed as you think. If DHS took away Techdirt's domain for daring to criticize its actions you can be sure it would constitute a violation of Techdirt's first amendment rights. The fact that Techdirt's website could still be accessed by its IP address wouldn't change the fact that protected speech would be negatively and significantly affected by the move. The fact that DHS felt compelled to return mooo.com's domain to it is proof enough that taking away a domain is not at as insignificant an action as you claim it is.

Domain names are property and people should not be denied the use of their property without due process. Furthermore, when being denied the use of one's property also impacts one's right to speak freely, the degree of scrutiny to which such denials must be subject should be pretty high indeed.

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"Sorry, let me use the right term "alleged illegal business", which was shown to a judge, and was enough to merit the warrant."

The problem is there's no guarantee of a trial following a seizure. If such a guarantee existed and the domain were returned in the event the state or property owner were unable to prove or follow through with its case, domain seizures would not be a problem as they couldn't be used as an end-run around the justice system. What DHS wants is to take away people's domains without bothering to try the owners of the "alleged illegal business" in court, and that's just plain wrong.

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"Just like any move to seize a car, a cell phone, or other piece of technology used in a crime, it is locked up pending a completed investigation and charges."

False. No charges need be filed to seize and ultimately confiscate a person's property. That's the problem with the law as it currently stands: you can deprive people of property without having to prove they are guilty of the alleged offense or offenses.

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You obviously don't have any clue what you're talking about. Constitutional rights are not legal rights. Copyright is a legal right. Free speech is not a legal right, it's natural right protected by the constitution. Legal rights are rights granted by the government that are not natural rights.

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Adrian, there isn't any guarantee of a trial in a myriad of other cases where warrants are issued. As long as the case is "open", the property can be held.

What DHS wants is to take away people's domains without bothering to try the owners of the "alleged illegal business" in court, and that's just plain wrong.

Actually, I do think they want to try them in court. But they understand that they are often dealing with fly by night setups, spread out over multiple countries, with shadowy figures making it go. It's very hard to hit the target. There is a lot of investigating that will go into it before there are any court cases, and don't be shocked if some of them are filed and don't go forward only because they are unable to locate the defendants or to bring them to the US for trial.

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"You still have to go to a judge and convince them the person is engaging in illegal activity."

The standard of evidence in that case is a great deal weaker than it should be for anything other than seizure as a preliminary step to a trial. The standard of evidence for anything that results in depriving a person of property or his ability to speak should be very high indeed.

You're an apologist for the status quo who presents absolutely no evidence for why the standard of evidence should be so low. Just another anonymous idiot trying to pull the wool over other people's eyes.

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If none of that is seized why do it then?
Because it temporarily disrupts those things so it is a form of censorship, further where the "illegal" part came from, where they found guilty in a court of law?

How did you concluded that it was all illegal? care to share you logic with the rest of us to see if you are a nutjob or someone reasonable?

From what I saw ICE screw up seizing 84.000 websites and posting to everyone trying to access that website that they were pedo's which is big, even by accident with the current climate about the subject is like pouring gasoline into fire, the Salem-withcraft-courts comes to mind of the dangers of such actions.

Further some blogs where completely legal and courts had said so and there is the case of the blogs that received content from producers and got seized without any wrong doing apparently on their part, is that what you call it illegal?

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"Adrian, there isn't any guarantee of a trial in a myriad of other cases where warrants are issued. As long as the case is 'open', the property can be held."

And that makes it OK? Unless they have a legitimate investigative reason to hold on to said property, to do so so without a trial in sight is unfair to the owner. To do so knowing there will be no trial is just plain unethical. The DHS has no legitimate investigative reason to hold on to seized domains, so what remains to be seen is whether any of the seized domains will lead to a trial.

Fact is that DHS wants to shut down certain websites with as little effort as possible. If that means shutting down websites without a trial because it's too damn hard to catch or prosecute the offenders, then that's exactly what they'll do (and everything so far suggests it's exactly what they're doing). You're free to disagree, but that just isn't right.

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I see a lot of representations of law but it's still American law. By what right does ICE seize my domain when I'm from Europe and I know for a fact that I broke none of EU laws? By taking my domain ICE would have taken away my freedom of expression (we all know how important domain name is for recognition, search results, etc.). Even if my page is still accessible over IP - how would you feel if the Post would go postal over a package that could be seen as illegal (but not actually proven illegal) and obscured your address from "Shawshank Road 167a" to something like "#88589493&234PRL#"? You know, for security reasons.

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Going to a judge is due process.

Um, I hate to break it to you -- even if we have explained it to you at least a dozen times -- but going to a judge without an adversarial hearing of some sort is NOT due process, and this is well established.

Your level of delusion never ceases to amaze. Due process means that you have a chance to defend yourself. If you're left entirely out of the process, there's no due process.

Thanks for playing, and please read your Constitution, because it appears you need a refresher.

USA V the world

let me point something out to all American citizens some of you know this but ICE apologists don't. USA laws are for USA not the rest of the world ICE have no right taking domain names based in other countries or to force their laws on the rest of the world. Something some appear to have forgotten.

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We have free speech because the First Amendment says so.We have free speech because the First Amendment says so.

Have you actually read your declaration of independence?

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

I think you'll find that free speech fits nicely into the "liberty" bit:

lib·er·ty (lbr-t)
n. pl. lib·er·ties
1.
a. The condition of being free from restriction or control.
b. The right and power to act, believe, or express oneself in a manner of one's own choosing.
c. The condition of being physically and legally free from confinement, servitude, or forced labor.

The fact that it was specifically codified into the constitution doesn't change the fact that it's the entire basis on which your country was built. Take that away and you're just China with better sunglasses and theme parks. That revelation woudn't suprise me terribly.

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You obviously don't have any clue what you're talking about. Constitutional rights are not legal rights. Copyright is a legal right. Free speech is not a legal right, it's natural right protected by the constitution. Legal rights are rights granted by the government that are not natural rights.

With respect, I do know what I'm talking about. I'm talking about legal rights, i.e., rights that can be successfully defended in a court of law. The rights granted by the Constitution are legal rights. The Constitution is the fountainhead of all of our legal rights. Constitutional rights may reflect some underlying natural rights, but you wouldn't argue in court that something is your natural right. You would argue that it is your legal right.

Despite your claim to the contrary, free speech is most definitely a legal right. As I've indicated, the right of free speech may be granted and it may be taken away. Lots of laws on the books already take away some of your freedom of speech, like defamation laws or obscenity laws. And new laws can be passed that take away your freedom of speech even further. When a law impinges on the First Amendment, there are certain tests such (like rational basis, intermediate scrutiny, or strict scrutiny) that are applied to see if the impingement on free speech is permissible.

All the First Amendment does is make it a little harder to pass laws that can impinge on free speech, but it doesn't make it impossible to pass any such law. Why? Because for the simple reason that free speech is a right. And like all rights, it can be granted, taken way, or otherwise circumscribed.

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For no more then 90 days except they can prove with very compelling evidence that they need it more time to hold that.

That's not true. We're on the judge's and the prosecutor's timetable. The clocking isn't ticking as you suggest. The prosecutor has great discretion of when to file the actual forfeiture proceedings, and then the judge has great discretion as to when to return the property, if ever.

and they will keep ignoring the constitution until.....

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The truth that they are only ALLEGED criminals and not adjudicated criminals hurts our position? LOL! Not at all. Of course they're only alleged criminals. We all know that. But so what? How exactly does that hurt our position? Do tell.

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Um, I hate to break it to you -- even if we have explained it to you at least a dozen times -- but going to a judge without an adversarial hearing of some sort is NOT due process, and this is well established. Your level of delusion never ceases to amaze. Due process means that you have a chance to defend yourself. If you're left entirely out of the process, there's no due process. Thanks for playing, and please read your Constitution, because it appears you need a refresher. It really frightens me when Americans defend such blatantly anti-Constitutional positions.

And your rhetoric and focus on only one side of things frightens me. The truth is that instrumentalities of crime get seized every day without a prior adversary hearing, and it does not violate legal due process.

There is a nontrivial argument here that these seizures violate legal due process, but that's all it is--an argument. I believe that you are intentionally lying by claiming that this is 100%, without any doubt, a violation of legal due process. That is less than honest, Mike, and you know it. All you have is a viable argument. That's all either side has. Don't pretend like there's not another side with a viable argument. That makes you look bad. That makes you unbelievable.

After the property is seized, a forfeiture proceeding is initiated, and the owners of the property seized can participate in that proceeding. That's legal due process when it happens in other forfeitures. Perhaps it's legal due process here. The fact that you don't admit that possibility destroys your credibility immensely. It shows that you care more about your agenda than you do about the truth.

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The truth is that instrumentalities of crime get seized every day without a prior adversary hearing, and it does not violate legal due process.

Excellent, so you should have no trouble pointing a layman like me at the many instances where things have been seized without prior adversary(sic) hearing and the thing(s) seized did not prevent further commission of the alleged crime and were not part of the evidence of the alleged crime. Links would be nice.

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Excellent, so you should have no trouble pointing a layman like me at the many instances where things have been seized without prior adversary(sic) hearing and the thing(s) seized did not prevent further commission of the alleged crime and were not part of the evidence of the alleged crime. Links would be nice.

LOL! I'm not going to do your homework for you. Forfeitures predate the Constitution, and they have been a part of this country since the day it was born. I'm sure a quick Google search would have you on your way in no time.

Look, I admit there are good arguments for why these seizures and forfeitures violate the First and Fifth Amendments. What I don't do is pretend like there's only one way to look at this.

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CIA torturer: "The truth that they are only ALLEGED terrorists and not adjudicated terrorists hurts our position? LOL! Not at all. Of course they're only alleged terrorists. We all know that. But so what? How exactly does that hurt our position? Do tell."

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Again, at the end of the day, a right is a right. Rights are created, and rights are destroyed.

Rights are like energy, they can neither be created nor destroyed. They always exist, so long as society exists. They can, however, be denied to an individual or a group, either by might or by law. My right to breath was not created by anyone (other than my mother and father,) nor can it be destroyed (except by God or by another human who decides his right to breath is more important than mine, and denies me of that right.)

The Constitution, or any law for that matter, codifies those rights that already exist in nature. However, there are many rights that exist which are outlawed as well...my right to use force on others is greatly limited by law, yet it still exists. Society limits those rights because society feels that one person's rights should not damage another's except in very narrow cases, which is necessary in order to keep society together. However, in some societies, the rights of a few persons far outweigh the rights of the populace. In those societies, the members of the ruling class could in fact use the right of force against you, and deprive you of your rights.

I realize IP maximalists love this type of society, where their rights trump the populace, but so long as the society remains free and democratic (something that I know IP maximalists are working hard to subvert,) your right to copyright will never trump my right to free speech, since free speech is specifically codified in the Constitution, and Copyright isn't, until you get that changed.

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Blah blah blah...

Constitutional rights are just that, constitutional. Legal rights are legal rights because they are not self evident and are subordinate to constitutional rights. That's why they call the Constitution "The supreme law of the land". They are laws that are held above all other laws. You can't grant and repeal them as casually as a legal right either. The majority of the states must ratify any change to the Constitution. Legal rights only need a majority vote from congress and a signature from the president.

There's a reason they label one right legal and the other constitutional.

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Based on the statement "to promote the progress" I think it's the duty of congress to make serious cuts to the scope and length of copyright. Copyright and patents do not promote the progress anymore. They only provide the methods that allow the handful of powerful rights holders to bar any technology from propagation that lacks unnatural limitations to prevent usage of that technology that doesn't line their pockets.

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Well thank you for that. Most interesting, though as you say it's a complex subject for a quick scanning of links. However on a quick read through of a few of the top results most of the seizure law seems to deal with seizures after prosecution for a crime or for multiple crimes. Seizures mentioned prior to trial seem to all be either evidentiary in some way or related to RICO statutes.

I also picked up that the RICO law has been expanded far beyond it's initial intent over the years (I assume because it's so handy for law enforcement to be able to do pretty much what they please), but it doesn't yet seem to cover trademark or copyright infrigement. Have I missed the bit where it does? Or are you suggesting that RICO laws cover these cases in a different way?

Or have I missed some other specific cases that answer the question I asked where seizures are pre-trial, not evindentiary or to prevent further crime? As I said from a quick read RICO would seem to allow for that but does not seem to apply here. In lieu of that as I understand US law to work, it would default to the various constitutional ammendments would it not? 8th, 1st, 4th and possibly 5th as I understand potentially coming in to play in this case and all on the side of the seizures being dodgy.

I'm interested so help me out here. Logic and common sense state that these seizures are ludicrously over-reaching, but I also realise those things have little to do with law (RICO statutes and the Patriot Act both seem to stray into that defintion for example). You seem pretty sure that they are legal so show me - argue a case instead of flat antagonistic statements of "truth"

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The Constitution only empowers Congress to secure the author's exclusive right to their writings. It doesn't empower Congress to grant the privilege of copyright. See http://www.p2pnet.net/story/49504

It's astounding how ready some are to believe that The People would create a government to protect their liberty and yet also empower it to abridge that liberty to obtain an enriched and consequently beholden and supportive press (taking its lead from Britain four score years earlier).

An author has a natural exclusive right to their writings certainly, but that doesn't sanction the granting of a monopoly - an instrument of injustice (obtained by annulling the right to copy in the majority to leave it by exclusion in the hands of a few). Doesn't anyone recognise that this is why 'copyright holders' are so called? Because they HOLD a right annulled in the majority (left in the HANDS of a few). The only true rights are ones people are born with, imbued in them by nature - to be recognised and secured by law - not granted by law.

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I really don't have time to run through it all. I'll tell you what I told Karl: Focus on seizures and forfeitures done pursuant to copyright and trademark infringement. Most of the seizures dealt with sites that violated trademark laws, but Techdirt is focused on the copyright violations. The fact is, the analysis is different for each. Also focus on what constitutes due process in such seizures when there is not prior adversary hearing. Search terms that might be helpful include: preseizure hearing, ex parte seizure, civil forfeiture, in rem forfeiture, due process, first amendment, prior restraint, and fifth amendment.

I've been working feverishly preparing for an upcoming debate on whether or not Obama is right in his latest announcement he believes DOMA is unconstitutional and that the DOJ will not be defending it in the Second Circuit. I'm taking that position that not only is the President right to not defend laws he believes to be unconstitutional, but that democracy is at its finest when such situations occur. I've already done about 40 hours of research, and I'm only halfway done with getting all my arguments prepared. It's a very complicated subject, with lots of history.

So is the constitutionality of these seizures. The point is, analyzing the due process issues alone in these seizures would mean days of research culminating in a 30-40 pages of memorandum of law. It's not an easy subject. From the 10 or so hours I have researched it, I have come away recognizing that both sides have merit, and I could make good arguments for either side.

One last point, my netbook that I primarily use died a couple of days ago. On that computer, I had a few good law journal articles that would help you out. Luckily, all of my computers back up each night, so once I restore that backup, I'll try and remember to find those articles and post them for you. Good luck.

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Focus on seizures and forfeitures done pursuant to copyright and trademark infringement.

I did and still coming up empty - in all the trademark cases I can see referred to the seized goods were evidentiary to allow infringement to be established mostly around software and pharmaceuticals. I can't see anything pre-trial that says you get to seize whatever you like unless it's linked to RICO. Perhaps that's an irrelevancy but it seems pretty fundamental to due process to me.

I'd have no problem if whatever they'd seized was evidence - the servers, data the goods they were allegedly selling in some cases. I'd have no problem if the domain names had been siezed as a punitive measure after guilt had been properly established in court as being the only possible remedy available.

The case, however, seems to be that there is a seizure of property that has no other reason than to be punitive and that has happened without correctly establishing guilt. Now I'm not an expert nor American so that may well be legal as far as I know, but if it is you guys really should stop singing about "The land of the free". What's next? Bursting into a student house and saying "We think you've drawn some Marvel fan art in violation of copyright so we're taking your coffee machine oh, and that nice stereo over there"?

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"An author has a natural exclusive right to their writings certainly, but that doesn't sanction the granting of a monopoly - an instrument of injustice (obtained by annulling the right to copy in the majority to leave it by exclusion in the hand of a few)."

I think Jefferson would disagree:

"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property." - Thomas Jefferson

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Well, where the disagreement would lie is in that the nature of ideas is that they cannot be executed and still be the sole property of the originator. A shared idea cannot be in exclusive ownership after execution of that idea, because execution is a form of sharing an idea. Would you not agree that performing or publishing a work puts your ideas into the minds of all observers? If you had said ideas and not writings, I might agree with you. Unfortunately, you referred to writings, an execution of ideas and a method of sharing them.

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I still don't see any disagreement between what I've posted and your quote from Jefferson, whether ideas or writings.

An author has a natural exclusive right to their writings.

An author has a natural ability and need to exclude others from their private spaces and possessions and that includes intellectual works such as writings as well as material works such as sculpture. Do you imagine that anyone can just walk into an author's home and seize or copy their manuscript to a novel they're writing without even a 'by your leave'? The author has the power and natural right to exclude them from seizing, copying or even reading their writing.

Congress is specifically empowered to secure this exclusive right of the author precisely because intellectual works, especially writing, can be so easily copied (and the exclusive right violated). Securing an individual's exclusive right to their material possessions (aka property) has been long understood, i.e. against theft.

Madison egregiously assumed the power to grant Queen Anne's monopoly of copyright on the pretext that this would help secure the author's exclusive right. Unfortunately, it provided no security and little remedy to all except the wealthiest of authors, and simply enriched the publishing industry at the expense of the people's cultural liberty.

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Ideas in your head? Yes. Published writings? No. As Jefferson states in the quotation, once an idea is passed from me to you, it is beyond my control to stop you from passing on that information to another. The only way you can assuredly prevent anyone from appropriating your ideas is to never allow them to leave your head and hope that no one else ever produces the same idea independently.

You believe that it's a natural right of exclusion authors have with their writings. I believe that you can't pass on your ideas and maintain ownership. It's impossible. You can claim authorship of those ideas, but those ideas you express are like so many feathers to the wind, lost to forces beyond your control and impossible to recapture.

Your manuscript analogy is terribly flawed. What you're doing is applying the physical property concepts to works based purely on the fact that those works happen to be fixed to paper. What if it wasn't (which is most likely)? What if it was on their computer and they publish it online? What ownership do they have to those bits flying across the internet? Your analogy is born out of a need to sell the expression of your ideas rather than the effort and skill it took to create it.

I say this often, the expression of your ideas are nothing in terms of money, but your time and effort is worth paying for because it inherently has a heuristic cost, which works do not. They are the result of expending that effort, but they are not the thing that is really for sale. You may believe the exclusive right to your works is a self-evident and natural right, but the nature of how ideas spread contradicts that.

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Instead of flying off into orbit demolishing things I haven't said, why don't you restrict yourself to your original contention, that what I've actually posted (not what you imagine I believe) is in disagreement with what you've quoted from Jefferson?

As far as I can tell, because you haven't told me, nothing I've actually posted is in disagreement with what you quoted from Jefferson.

Given how apparently significant and several are the disagreements you observe in my writing vs that of Jefferson it would seem to be an easy matter for you to pick one of my sentences and tell me which of Jefferson's it is in flagrant disagreement with?

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Not wanting to get kicked from both sides for misinterpreting, nevertheless I thought I'd stick my twopennorth in.

It seems to me what Greevar is saying is that as soon as you let anyone else see your writing that any "natural right" to your writing vanishes because writing is essentialy an idea and now that idea is posessed by all observers no matter how limited a number. You originally seemed to be implying that the "natural right" extended beyond that:

An author has a natural exclusive right to their writings certainly

Then you modified it with:

Thus two individuals may exclusively possess an idea or intellectual work (mutually) as long they keep it to themselves.

Which sort of suggests what Greevar seems to be saying but perhaps, like me, he's getting a little hung up on why one would bother to write something with no intention of it being shared with others? And if you don't share it then any "right" to seems irrelevant - I took Mr. Jefferson to be speaking ironically with the "as long as he keeps it to himself" line.

Of course I could be way out of the sport never mind the ballpark with that one and if so I've no idea what the two of you are arguing about.

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Natural rights do not vanish (unless you class death as the vanishing of the individual and their rights along with them).

What people want to 'bother' doing and what their intentions are is up to them and immaterial to a right. Indeed, we're concerned with what people's rights are, and specifically, with whether what I originally posted is in disagreement with the Jefferson quote.

Rights are not dependent upon intention or what is worthwhile. Such considerations may be claimed as supportive by those finding excuses for the granting of privileges, but again, we're concerned with rights.

If I write a poem on a piece of paper, an etch-a-sketch, a cat litter tray, or on an electronic PDA, I have a natural exclusive right to it, i.e. a natural right to exclude others from accessing it, removing it, copying it, destroying it, or reading it, or anything else I am physically able to achieve. Such a right should be secured by a government created to protect all individuals' rights equally.

If I give/copy/lend/share/sell this poem with/to a friend (or even a joint author), then we both have a natural exclusive right to this poem. The same applies if either of us shares the poem with others, and so on.

Just because there are several other people who now have a copy of this poem, that still doesn't make anyone's right to exclude others from the poetry in their possession vanish. I still have a right to exclude burglars (invaders of my privacy - the region I inhabit from which I exclude unauthorised persons) from stealing & printing copies of the poems in my possession. Just because you don't see much need for such a right doesn't mean it doesn't exist or that no-one should have it secured.

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Okay, let me put it this way. You are correct about the notion that the rights remain, but the power to exercise those rights disappeared as soon as you passed on that work to another by virtue of the nature of ideas. Sharing any ideas in any form negates your power to exercise that right and Jefferson's words support that point.

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You're still trying to argue against something I've not said. The fact remains that my original post is not in disagreement with the Jefferson quote.

An individual's rights don't disappear through any action on their part, nor are they negated by any action. Indeed, rights are inalienable. There is nothing an individual can do to alienate themselves from their rights (aside from jump off a cliff).

I have a poem in my drawer and I have a natural right to exclude you from it. End of story, no ifs, no buts.

You might offer me $1 for a copy, and I might take you up on your offer. Let's say you did. You now have a copy. However, I still have a right to exclude you from accessing or copying the original in my drawer. Obviously, you may now have no inclination to burgle me to copy it as you already have a copy of the poem (unless you're after the original, or want a copy of my handwriting as opposed to a typewritten copy). That you lose interest in burglary doesn't make my right vanish. Similarly, you have a right to exclude others from the poem in your possession. Just because two of us now possess a copy, that doesn't make it open season for anyone to burgle us and take copies.

Bear in mind that copyright is quite different to this natural exclusive right. Copyright is a privilege that annuls EVERYONE'S right to make copies of covered works (even the author's). This privilege enables the holder to restore/license the annulled right back to authorised persons, e.g. printers. Because of this privilege, when I write a novel poem, neither of us is legally permitted our natural right to copy it. Instead, the holder of the privilege of copyright is solely entitled to determine who may copy the work. Copyright arises in each original work and is thus initially in the hands of the author, and if the author transfers copyright, they, having already had their right annulled, also loses the privilege to copy their own writing. Copyright is about controlling who can make copies of a work even if the work is in their legitimate possession. Thus thanks to copyright I can give you a copy of my poem AND only the copyright holder (me, my publisher, their receiver, or whoever) can decide if you should be authorised to make further copies (probably not). Such power of course being quite unnatural.

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You can't exclude others anymore if those that receive a copy have a mind to copy it and give it to others. Your power to exclude is effectively null. Don't you get it? Your perceived right to exclusion is easily circumvented the moment you divulge the work. That was Jefferson's entire point. Write your poem down and then burn it. That is the only way you'll be able to effectively exercise that right you claim.

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Unless you're going to admit telepathy there is no 'circumvention' possible. In order to copy the writing in my drawer you either need my consent or you must violate my exclusive right.

So, I don't think you get it.

Even if I've previously 'divulged' or given a copy of my writing to a friend this still doesn't diminish/negate/vanish my right to exclude you from the writing in my drawer.

You've still not pointed out where my original post disagrees with the Jefferson quote. A clue that you won't find any disagreement should be that I haven't disagreed with anything in the Jefferson quote.

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Well there's nothing wrong with telepathy.....

Are you suggesting then that the "exclusive right" to do exactly what you want with something remains on the something in your posession but that the *same* "exclusive right" is automatically created in anyone you allow to hear/see/smell or otherwise experience that thing? Basically a sort of "You can't have my copy because it's mine - go bug someone else about it if you want it they'll give it to you"?

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An author's (natural) exclusive right to their writings is to exclude others from them (unless permitted/included of course), i.e. those in their physical possession (or otherwise in their private domain).

The right belongs to the individual and applies to the intellectual works in their possession. Clearly anyone can attempt to prevent anyone else rifling through their drawers and removing writings or making copies thereof. However, if you give a writing or copy to someone, then that is obviously no longer in your possession.

It's not the right that ends when you give a copy to someone, but possession.

An individual does not magically obtain power over another simply by reciting a poem they've written to them, or handing them a copy of one. Though, it seems people do like the idea of having such power. Hence, copyright is seductive because it provides power over others (they have to ask the copyright holder's permission if they want to recite a covered poem - or pay a license fee).

So yes, if one person won't give/make you a copy of something, ask someone else who might. Just because several people have copies, that doesn't entitle anyone to steal one. Of course, once you have a copy, you can produce as many further copies or derivatives as you like (but for copyright that annuls your liberty to do so).

So, even without the privilege of copyright, the exclusive right remains, though it should still be secured by law - but not a privilege. You don't need to annul everyone's liberty to secure an individual's exclusive right.

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With all the time you've wasted saying you can't waste time telling these people what's up you could have told them what's up. I think you are nothing more than a clever little troll stringing everyone along. In your heart you know this is all bullshit.